' SARDAR ABDUL HAMEED KHAN, J.---By virtue of above revision petition and appeal, though 2 separate order/ judgment/ decree, one of Civil Judge Dhirkot and second of Additional District Judge Dhirkot both dated 31-3-2009 have been assailed but both the orders pertain to the same property and the proposition of law involved in both the cases is the same. Thus, I proposed to dispose of both the above titled cases by this single order.
' The precise facts giving rise to the instant revision petition and appeal are, that the appellant instituted a suit bearing No. 129 on 8-12-1985 in the Court of Civil Judge Dhirkot titled Raja Muhammad Ashraf v. Abdur Rasheed and Khan Mir Khan for cancellation of a Mortgage Deed (Redemption of mortgage) and Mutation No. 1128 pertaining to land Field No. Old 710 measuring 14 Kanals 13 Marlas, 1093 measuring 10 Kanals 7 Marlas situated in village Makhyala and claimed that the plaintiff is the owner of this land and out of this land plaintiff mortgaged land 3 Kanals 13 Marlas out of Field No. 710 and 7 Marlas land out of Field No. 1393 total 4 Kanals, against mortgage money wroth Rs.20,000 on 1-12-1980. It was contended in the plaint that the mortgage money shown in the mortgage deed as Rs.40,000 is against the fact and fake one. The plaintiff prayed for the subject decree.
' After hearing the parties, the learned Civil Judge Dh.Irkot vide his judgment dated 30-8-2008 passed a decree of redemption of mortgage in favour of appellant/plaintiff subject to deposit of the decreetal amount Rs.65,000 till 30-11-2008. The respondents/defendants filed an appeal in the Court of Additional District Judge Dhirkot, while the appellant did not file any appeal. The appellant failed to deposit the decretal amount in the period fixed by the Court. However on 2-3-2009, after three months of the date fixed in judgment, the appellant moved an application in the Court of Civil Judge Dhirkot for permission to deposit the decretal amount. The amount of decree was deposited by the appellant and which was allowed by the learned Civil Judge subject to objections. After hearing the parties, the learned Civil Judge rejected the application vide order dated 31-3-2009.
Thus the suit stood dismissed. The petitioner/appellant feeling aggrieved filed the instant revision petition.
' That the appeal filed by the respondents/defendants which was sub judice before the Additional District Judge Dhirkot, the respondents (appellants/ defendant in the said appeal) moved an application, that due to non-deposit of the decretal amount, the suit has failed, hence it was requested before the Additional District Judge that by accepting the appeal, the suit of the plaintiff/respondent may be declared dismissed. The learned Additional District Judge after hearing the parties, while disposing of the the suit of appellant/plaintiff by impugned order dated 31-3-2009. Feeling aggrieved by the order the plaintiff also filed the instant appeal.
' The learned counsel for respondents has filed written arguments, while the learned counsel for appellant argued the case.
' The learned counsel for appellant Sardar Atta Ellahi Abbasi Advocate argued at length and maintained that the impugned Revision Petition No.. 47 of 2009 dated 21-4-2009 merits acceptance on the grounds and facts narrated in the petition. He submitted that contents of the revision petition may very kindly be taken as integral part of his arguments. He submitted that initially a decree on the basis of right of prior purchase was passed in favour of his client on 30-8- 2008 and order was passed by the trial Court that the decretal amount worth Rs.65,000 shall be deposited in the Court within three months on or before 30-11-2008. That the appellant/petitioner accepted this decree and did not file any appeal against this judgment/ decree of Civil Judge Dhirkot, however respondents filed an appeal before the Additional District Judge Dhirkot. He further explained, that as the matter was sub judice before the Additional District Judge Dhirkot thus, under an impression, that the judgment has been assailed and the deposit of decretal amount is not necessary. The needful could not be done by the appellant within time.
' During the pendency of appeal of respondents, the appellant moved an application before the Additional District Judge Dhirkot on 25/28-2-2009 that as the petitioner/appellant could not deposit the decretal amount in the Court of Civil Judge Dhirkot, under the said impression. However the learned Additional District Judge, Dhirkot passed no order on this application. It is further argued that on 2-3-2009, an application was moved before the Civil Judge Dhirkot for extension of time for deposit of decretal amount and on the same day, the petitioner was allowed to deposit decretal amount subject to objections from the other side. However, the respondents on the notice of the Court, filed their objections and the learned Civil Judge Dhirkot on 31-3-2009 rejected the application and passed the impugned, order of dismissal of the suit. The trial Court termed itself as being functus officio. It is added that the learned Additional District Judge on the same day, passed the impugned judgment/decree, whereby the suit of the petitioner/appellant (plaintiff) was dismissed. The learned counsel lastly argued that as the decretal amount was deposited in the court under a Court order thus, both the impugned orders of Civil Judge Dhirkot and Additional District Judge Dhirkot dated 31-3-2009 are against law, which are illegal, bad in law and submitted that both the Courts below have misconstrued the terms of functus officio and seisen over the matter. He has referred the following case-law:--
1. 2008 SCR 530;
2. 1993 SCR 230;
3. 1985 CLC 474;
4. PLD 1983 SC (AJK) 174;
5. 1987 CLC 1682; and
6. 2013 M LD 514.
' While controverting the arguments of the learned counsel for petitioner/ appellant, Raja Sajjad Ahmed Khan Advocate appearing on behalf of Sardar Muhammad Arif Abbasi, the learned counsel for respondents, submitted written arguments, wherein it has been contended that the orders passed by both the Courts below are based on sound and strong reasons, therefore, these do not require any interference by this Court. It is further contended that the petitioner/ appellant did not comply with the order of Civil Judge Dhirkot, therefore, both the cases, revision petition and appeal as well may be dismissed.
' I have heard the learned counsel for petitioner/appellant and gone through the written argument filed on behalf of respondents and case-law referred by the parties.
' The moot point involved is that whether on 31-3-2009, the learned Civil Judge Dhirkot was functus officio or the learned Court had seisen over the matter and could extend time.
' Without discussing the facts and merits of the case, suffice to say, that initially a conditional decree was passed in favour of petitioner/appellant by the learned Civil Judge Dhirkot on 30-8- 2008, wherein it was stipulated that the plaintiff will be entitled to the decree on the payment of decretal amount upto. 30-8-2011. It means that the suit stands decreed only on deposit of decretal amount on fixed date. While reading the impugned order of Civil Judge Dhirkot with the contents of judgment and decree of the said Court dated 30-8-2008, the learned Civil Judge Dhirkot has reached the conclusion that the extension of time for deposit of the decretal amount was not sought by the petitioner/appellant within limitation i.e. On or before 30-11-2008 and opined that the Court has functus officio on 30-11-2008, the trial Court is the Court of facts, hence its orders have to be given weight. The language used in the judgment and decree and in the impugned order of rejection of application for extension of time to deposit the decretal amount, it is concluded that the basic order was conditional, which is in itself had a penal provision.
' As far as impugned order of Additional District Judge Dhirkot, is concerned, it is pertinent to note that in favour of present petitioner/ appellant, the decree of the Civil Judge Dhirkot has attained finality and as the respondents/ defendants filed the appeal before the Additional District Judge, wherein it was also brought in the notice- of that Court, that the application for deposit of decreetal amount was rejected by the trial Court on the same day, whereupon, the Additional District Judge passed the impugned order on the same date i.e. 31-3-2009. Leaving aside the appeal of the respondents/ defendants before the Additional District Judge, the matter is clear that the trial Court was functus officio of the matter on 31-3-2009 as well as on 30-8-2011 when the appeal was disposed off.
' While going through the case-law referred by the learned counsel for the petitioner/ appellant, no need to discuss the other case-law because most of the above case-law, has been discussed in the latest judgment of the apex Court of AJK in a case titled "Muhammad Siddique Khan v. Sardar Muhammad Akbar Khan and others" reported in 2013 M LD 514, wherein an application for extension of time was filed on last date. The application was rejected and the suit was dismissed, which was upheld by the apex Court. For convenience sake, the observation made by the apex Court is reproduced hereunder:- ' S. 148---Enlargment of time fixed by court for doing an act--- Powers of court---Scope---Court after passing preliminary decree could extend such time as matter would remain sub judice thereafter, but would become functus officio after passing final decree and could not extend such time--- Principles.- ' Section 148, C.P.C.-postulates that when any period is fixed or granted by the court for doing of any act prescribed or allowed by the Code, the courts, under its discretion from time to time enlarge such period even though the period, originally fixed or granted has expired. The section is applicable in the case where the court has fixed any period for doing an act. The court has power to enlarge and extend the time, if it has seisen over the matter. If the court has passed a preliminary decree and the matter is sub judice before the court, then the court has power to extend time, but when the court has passed a final decree and the matter, is not pending before it, the court after passing such final decree becomes functus officio and cannot enlarge the time.
The decree normally puts an end to the suit and the power of the court to pass any other order with regard to that particular suit thereafter also comes to an end and the court becomes functus officio. However, in preliminary decree the court does not become functus officio but still retains control over actions and has power to make orders including extension of time.
' Pre-emption suit, decree in-Extension of time for depositing purchase money by decree-holder-- - Scope---Decree would operate automatically and' court would have no control over matter, if while passing such decree ordered that suit would stand dismissed in case of failure of decree holder to deposit such money on or before, specified date---Court would have control over matter to pass a separate order for dismissal of suit, if while passing final decree ordered that suit would be dismissed in case of such failure of decree holder.
' ---S. 21---Civil Procedure Co-de (V of 1908), S. 148 & 0. XX, R. 14--- Pre-emption suit, decree in--- Decree,directed plaintiff to deposit purchase money along with costs of sale-deed on or before specified date, otherwise suit would be deemed to have been dismissed-- Plaintiff's application for extension of such time filed on such specified/last date---Valialty---Such decree was final for being operative automatically---Court after having passed a final decree would cease to have control over suit and become functus Plaintiff's case was not covered by provision of S. 148, C.P.C.- -- Question of sufficient cause for non-depositing such amount within time fixed would be irrelevant in such case---Such application was dismissed in circumstances.
' It is- pertinent to mention that in the case in hand, the application for extension of time for depositing the decreetal amount was moved by the decree holder after three months of the date fixed in decree/judgment on 2-3-2009. As far as the amount deposited in the Court is concerned it cannot benefit the appellant because it was deposited subject to objections from other side.
' Thus. In view of ratio of decidendi by the above judgment of apex Court, the discretion exercised by the learned Civil Judge Dhirkot in the impugned order has been exercised properly and no illegality or irregularity or perversity is found in the impugned order, thus the revision petition is liable to dismissal.
' The appeal pertaining to the impugned order of the Additional District Judge Dhirkot dated 31-3- 2009 need no further resolution because the suit of the petitioner/appellant has not been decreed in the-light of impugned order of Civil Judge.
' The upshot of the above discussion is that finding no force in the above revision and appeal, both are hereby dismissed with no order as to costs.
Revision/.